Case update: Simpson slopping out case granted leapfrog appeal

Alan Eustace - Trinity College Dublin, Law & French

In this year’s print edition of the TCLR, this author examined whether conditions within the Irish prison system, in particular conditions of sanitation and healthcare provision, are compliant with the Constitution – see Alan Eustace, ‘Bunreacht Behind Bars: The Irish Prison System in its Constitutional Context’ (2018) 21 Trinity College Law Review 89.

That article examined, in part, the recent landmark decision of the High Court in Simpson v Governor of Mountjoy Prison [2017] IEHC 561. The plaintiff alleged that the slopping out regime in Mountjoy’s protective wing was a violation of several constitutional rights, including privacy, bodily integrity, dignity, and not to be subject to inhuman or degrading treatment. White J in the High Court made a number of informative comments on the constitutional position with respect to inhuman or degrading treatment. First, it is an absolute right: ‘You cannot have proportionate torture or inhuman or degrading treatment’, although the severity of the treatment may be relevant in determining if it constitutes a breach of rights. Second, he held that the intention of the prison authorities is merely one factor in determining whether inhuman or degrading treatment has occurred, and that it is unnecessary to find such intention if the treatment ‘attains an appropriate threshold of severity’. This author argued in the print edition that Simpson may have finally exorcised the troubling ‘evil purpose’ test from Irish law, as had been set down by Finlay P in State (C) v Frawley [1976] IR 365:

I must construe the entire concept of torture, inhuman and degrading treatment and punishment as being not only evil in its consequences but evil in its purpose as well. It is most commonly inspired by revenge, retaliation, the creation of fear or improper interrogation.

A requirement of such malicious intent is not to be found in the jurisprudence of the European Court of Human Rights (see, for example, Peers v Greece app no 28524/95), nor in modern academic commentary. The print edition article welcomed White J’s departure from the outdated ‘evil purpose’ test.

On the facts, however, White J found that the slopping out regime in Mountjoy did not amount to torture nor to inhuman or degrading treatment. He held, rather, that the regime constituted a breach of the plaintiff’s right to privacy, although he refused to award the plaintiff damages for this breach due to the latter’s conduct in giving evidence.

The plaintiff sought leave to appeal directly to the Supreme Court under Article 34.5.4 of the Constitution. Although the State did not oppose the leave application, the Supreme Court directed an oral hearing be held on 20 June 2018. In a written judgment given 27 June, the Court granted leave to appeal, considering that a determination of the threshold for inhuman or degrading treatment is clearly a point of law of ‘general public importance’ for the purposes of Article 34.5.4:

It seems to this Court that the following general issues which potentially arise in this case do meet the broad constitutional threshold. First, there is the question of the overarching principle by reference to which it must be determined that treatment of a prisoner can be regarded as inhuman and degrading. In that context, other issues potentially arise as to the extent to which, in reaching an overall assessment as to whether treatment has been inhuman and degrading, the Court can take into account the circumstances pertaining to the relevant prisoner’s detention. Undoubtedly, any final assessment as to whether the existence of inhuman and degrading treatment has been established in a particular case will necessarily be somewhat fact specific. However, the Court is satisfied that a broad issue, of more general application, clearly arises as to the factors which can and should be taken into account in reaching an assessment as to whether such treatment has been established.

Furthermore, the Court noted the urgency of a final determination of the legal principles in this area, given the volume of similar cases pending before the courts:

[T]he Court was informed by the parties that in excess of 1,600 cases involving contentions, which are at least broadly in the same category as those which arise in these proceedings… [T]he current view of the judge in charge of the relevant High Court list was that he would not list any other cases for hearing until such time as any appellate process in this case had completed. It was acknowledged, of course, that that situation might change in the event that a lengthy period of time were to elapse before this case concluded. However, it is entirely understandable that the High Court would not wish to waste resources in trying cases where the basis on which the case was tried might turn out to be inaccurate in some respect in the light of the final determination of relevant legal principles which might result from this case.

The Court ordered that documents be filed by 18 July, and a case management hearing be held shortly thereafter. This hearing was listed for 24 July before MacMenamin J.

In light of the criticisms levelled at the ‘evil purpose’ jurisprudence in the print edition article, it is to be welcomed that the Supreme Court is to engage again with the constitutional understanding of inhuman or degrading treatment. The High Court’s finding on this point was, thankfully, more in line with ECtHR jurisprudence and modern penological thinking in this area. It is hoped that the Supreme Court uphold White J’s view that malicious intent on the part of the prison authorities is not required for conditions of imprisonment to amount to inhuman or degrading treatment. As for the question of whether the plaintiff’s detention met the threshold for inhuman or degrading treatment, the Court is likely, of course, to defer to White J’s view of the facts. However, if the Court lowers the threshold for inhuman or degrading treatment applied in the High Court, then the finding on this point may have to be revised. Any such change will have an enormous impact on the many pending slopping out cases. Until the Supreme Court finalises the law in this area, then, it seems these plaintiffs remain prisoners to fortune.